Disability & Work - Advice appreciated!

I-Owe-You

I’ll apologise in advance for my lengthy email! I would be grateful if you could spare 5 minutes to read, and If anyone could offer any advice, I’d be extremely grateful.

I was diagnosed with Mineres Disease just over 2 years ago, and bilateral sensorineural deafness a few years before when I was 19. I am fortunate enough to still be in full time employment despite my hearing being degenerative and fairly profound.

I work for the NHS in a desk based job, and have had much of struggle in obtaining specialist equipment I need to perform my tasks properly whilst at work – despite my Trust openly advertising that it is an equal opportunities employer and supports the ‘2 ticks’ disability discrimination logo on all its public correspondence.

I wasn’t unreasonable with my request, and asked for the assistance of a type talk telephone to enable me to better hear when dealing with colleagues and patients. The onus was left to me to chase this, which unfortunately escalated into 18 months of email tennis with various job titles, form filling and red tape, as well as me undertaking workplace assessments (Via the local authority & RNID-where a telephone for me was recommended) unfortunately my Trust ignored this request and purchased me a cheaper telephone amplification unit to fit on the standard office phone instead, which unfortunately is not suitable for me. During this time I had visited our unbiased in-house occupational health GP who was kind enough to support me and agreed that my Deafness and Menieres disease is covered by the Disability Discriminations Act, and that any equipment I required would be a reasonable adjustment. She also stated that I am likely to have a higher sickness record due to my Menieres & Tinnitus, which I am sure most of you will understand when it is at its worse, it makes getting out of bed impossible, let alone coming in to work.

4 months later I was in floods of tears at work, still struggling to use this amplification device, with still no sign of the equipment I needed. Every time I spoke to someone the responsibility of obtaining this equipment was passed on to someone else – and being dependant on email for communication made resolving this so much more difficult. I became depressed & went to my own GP for help who was very understanding and told me not to go to work until the equipment was in place, and signed me off with a certificate for around 3 months (the time it took for all my equipment to be purchased, delivered & installed.)

I’ve now been back in the office since August, and have recently had the odd episodes of sickness (around 8 days over 2 episodes) due to my Meniere’s, which my employers have told me I am now not being paid for any further sickness absence because I have already had so much time off this year (through no fault of my own!). I am desperately trying to get advice whenever they are able to do this? I am in the trade union & am trying to arrange a meet with a rep face to face but again, being dependant on emails and other people to call on my behalf takes time.

I really want to stay in work, but am finding there are so many hurdles which make this difficult. If anyone has any advice I would be extremely grateful… I cannot commit to sickness targets, its well documented that I have these disabilities so cannot guarantee I will only have 2 days off sick in 6 months – but at the same time I cannot afford to remain work if I am missing a quarter of my salary each month.

Thank you in advance for any responses.

PS I have also posted this in disability & dosh, but hoped someone in the employment thread maybe also better placed to advise me.

BitterAndTwisted

Examine very closely the terms of employment in your contract! No employers terms are the same in every case. Often there is an absolute maximum of paid sick-leave an employer is willing to pay. Some employers in the private sector decline to pay any, as I discovered recently when I went to an interview

teabelly

If you had a job elsewhere you'd be just as sick in that job so I'd try and take off as little time as you can and just live with losing some salary. At least the NHS is less likely to kick you out on capability grounds. Any other business employer would have found an excuse to be rid of you long before. It's tough but if you want to work at all you may just have to accept your disability means you might have to earn a bit less now and then.

SarEl

teabelly wrote: »

At least the NHS is less likely to kick you out on capability grounds. Any other business employer would have found an excuse to be rid of you long before.

Not these days it's not!

But other than that I am afraid that Teabelly is pretty much correct. There are two entirely separate issues here, and you cannot confuse them. The amount of paid sickness leave that you get is strictly contractually bound - that is what you get and that is that. It matters nothing why you were off sick, whether the sickness is genuine or not, whether you are disabled or not, whose fault it is that you were off sick, nor anything else. It is pure mathematics - have you or have you not exhausted the total amount of paid sick leave?

As an entirely separate issue is what is often termed "managing sickness absence", which is a process to monitor sickness rates and to reduce levels of sick leave, with the prospect of dismissal for capability / incapacity if there are abnormally high levels of sickness. Again, the reasons for the sickness do not count, although in this case an employer may allow additional time off before management thresholds are met, and action is taken to deal with absences.

If the issue is paid sick leave, then the union will be very unlikley to be able to do anything to help you, because no public sector employer will change the contractual terms for someone no matter what reason is given - it creates a precedent which would be entirely stupid for them to start.

However since you mention "sickness targets" it would appear that you have not simply run out of paid sick leave, but are also within the managing sickness absence process. And if this is the case, you will almost certainly, at some point, get to a stage where your absences will lead to a dismissal unless your sickness absences are reduced. Whilst you obviously cannot promise not to be sick (who can - disability or not), the best that you are likley to axchieve here is some additional days allowance. It is highly unlikely that they will disregard all (or possibly even most) sickness related to your disability.

Teabelly is correct in that you may get a little more leeway than some other employers would permit, but in the end, the reality is that you are on a road towards possible dismissal, and you will get only limited allowance made for your disability.

redandyellow

Hi I-Owe-You

Your employer - as an NHS Authourity - has a 'Duty of Care' and in your situation they failed in their Duty of Care. They were, and still are, required by law to make 'reasonable adjustments' in order to remove barriers to you at work, help you to be at and stay at work etc. Reasonable adjustments can be the provision of equipment, changes to working hours, increased/changed breaks, increase in sickness triggers etc.
Another reasonable adjustment is to allow you paid time off work for disability related health appointments, treatment, therapy etc.

Your employee failed in their Duty of Care and failed to make reasonable adjustments and in recognising this they can make the following resonable adjustments:

for the purposes of the Sickness Management Policy, the disability related sick leave (including any leave for stress/depression caused by your employees failure to make reasonable adjustments) you incurred while left without necessary euipment and adjustments should not count.
Also, the pay you lost while left unsupported should be reinbursed and disabiltiy sick leave (incurred while left unsupported) should not be counted with regard to sick pay entitlement i:e full pay status should be reinstated.

They must make sure they provide you with what you need without unreasonable delay as they are required to do so by law. Ultimately you could take them to tribunal if, because of their failures, you lose pay and/or lose your job.

Hope that is usefull

redandyellow

You may find the following websites usefull:

EHRC (make sure you refer to the new Act - the Equality Act that came into force on 01/10/10) and see the section "The empolyer's duty to make reasonable adjustments to remove barriers for disabled people"( I should add here that if the act or acts of discrimination occured before 01/10/10 and are not ongoing/have not occured after this date then referrence should be made to the DDA)

Directgov. see "The Disability Symbol"

acas. put disability in the search box and choose 5th one down on the list

SarEl

redandyellow wrote: »

Hi I-Owe-You

Your employer - as an NHS Authourity - has a 'Duty of Care' and in your situation they failed in their Duty of Care. All employers have a duty of care - not just NHS ones. However, there is absolutely no evidence in the OP that the employer failed in any way whatsoever on their duty of care. Which is not such a big legal requirement as you seem to consider. Not making adjustments immediately etc is not a failure of the duty, and nor is refusing people additional paid sick leave. They were, and still are, required by law to make 'reasonable adjustments' in order to remove barriers to you at work, help you to be at and stay at work etc. You appear to have misundertood the term reasonable adjustment. The law does not require them to do anything. It requires them to consider an adjustment or adjustments and to make them if they are reasonable. Nor does it state that they must be made immediately. Reasonable adjustments can be the provision of equipment, changes to working hours, increased/changed breaks, increase in sickness triggers etc.
Another reasonable adjustment is to allow you paid time off work for disability related health appointments, treatment, therapy etc. Yes they can be such things - but they do not have to be these things!

Your employee failed in their Duty of Care (there is no evidence they did this) and failed to make reasonable adjustments (and none that they did this either - they did make the adjutsments but they took some time to do it) and in recognising this they can make the following resonable adjustments:

for the purposes of the Sickness Management Policy, the disability related sick leave (including any leave for stress/depression caused by your employees failure to make reasonable adjustments) you incurred while left without necessary euipment and adjustments should not count. You are talking about proving that the stress / depression was caused solely by the employer and that the employer was being unreasonable. This will be nigh on impossible to do in a court of law, so there is no obligation upon the employer to do anything. The sickness was also not "disability related" - it may have been caused by the delay in the adjustments being made, but it is still going to be very hard to prove.
Also, the pay you lost while left unsupported should be reinbursed and disabiltiy sick leave (incurred while left unsupported) should not be counted with regard to sick pay entitlement i:e full pay status should be reinstated. Sick pay is contractual. You get what your contract says. THis is all you get. No employer, and certainly not a large one, is going to start adjusting their sick pay policy for one individual without setting a precedent that it should be done for everyone else.

They must make sure they provide you with what you need without unreasonable delay as they are required to do so by law. What law are you quoting? Because the DDA does not say this. Ultimately you could take them to tribunal if, because of their failures, you lose pay and/or lose your job. Well you could - but since none of this would make a case, and you are misquoting the requirements of the law, you would probably loose.

Hope that is usefull

Not really.

redandyellow

Hi SarEl

Yes, all employers have a duty of care but I was referring to the Public Sector Duties. Sorry I didn't make that clear.
I thought there was evidence in the OP that there was a failure in the duty and a failure to make resaonable adjustments and a failure to make those adjustments without undue delay - 18 months, then another 4 and then another 3. Also, the wrong/unsuitable equipment was provided.

I did not say an adjustment should be made immediatley.

The law does require that they do something.

You said:
"Yes they can be such things - but they do not have to be these things!"
I did not use the word HAVE.

Taking a long time to provide needed equipment is a failure.

The DDA is no longer in force. The Equality Act came into force on 01/10/10.However, you will find the info in the DDA that you say isn't in the DDA and you will also find it in the new Act.

I work for a public authourity. I became disabled 2 years ago. It took my employer 2 years to complete provision of reasonable adjustments during which I incurred sick leave. There delay/failure to provide equipment made it difficult for me to carry out my work, and also triggered and exaserbated symptoms.
They acknowleged this, refunded my lost pay and gave me back full pay status.

SarEl

You will find that the DDA does apply - you canot make a claim under the new legislation unless the event complained of happened since its enactment - on 1st October.

The problem is that "without undue delay" is open to interpretation, just as "reasonable" is - and the employer will obviously resist any such claim with a whole battery of reasons as to why there was no "undue delay". The circumstances that your describe are where an employer is willing to make these concessions - it is a vastly different thing to prove them in a court of law. You were also very lucky - few public sector employers these days will make such elaborate concessions, not least because it admits liability if they do. Applying what one employer does to another situation in which the employer has clearly decided on a different, and less co-operative, strategy, does not make it something that will stand up in law.

redandyellow

You can make a claim under the new legislation if the act or acts of discrimination started before 01/10/10 but continue afterwards.

With respect, you do not know the details of my case and I can assure you it was not a case of me being lucky.

Wishing

What lenght of time is regarded as reasonable for employers to carry out necessary ajdustments for an employee to enable them to do their work without making their disability worse.